Opinion
No. 04 Civ. 02576 (RO).
November 3, 2006
OPINION AND ORDER
Plaintiff moves for attorney fees. There is no question and the City does not dispute that (so far, it says) plaintiff is the successful party here and has benefitted many others as well in the now "national" towing field. Accordingly, in equity and good conscience plaintiff is entitled to an award of attorney fees against the Department of Consumer Affairs of the City of New York under § 1988 and Hensley v. Eckerhart, 461 U.S. 424 (1983). See the opinion with the Court of Appeals-affirmed preliminary injunction here 326 F. Supp. 2d 568 (2004) and on the merits 423 F. Supp. 2d 279 (2006).
Plaintiff has appropriately furnished the Court with its time records reflecting the hours expended on the litigation and reasonable hourly rates to arrive at the lodestar which the Court should start with. Given some tailoring in footnotes 1 and 2 in its Reply Memorandum as to expenses, plaintiff, setting forth 2,140 hours of attorney time is seeking $651,856.00 in attorney fees and $6,293.98 in expenses which commenced in March 2004 culminating in 2005 and 2006 in a four day preliminary injunction hearing with ten witnesses over four days, a three day trial on the merits with five witnesses, extensive preparation and briefing pre-trial and post-trial, relevant motion practice, two appeals to the Second Circuit, oral arguments and related efforts surrounding all the foregoing.
This was all triggered — indeed compelled — by the City's sudden burst of seizures of a number of non-New York City licensed tow trucks in March and April 2004 within City limits even though they were lawful where based. This is detailed in the said earlier opinions of this Court above, and this notwithstanding an oral non-seizure agreement that had been honored for since at least 1987 between the City and neighboring cities and villages permitting outside tow trucks to come in and out which had been reconfirmed regularly in printed police bulletins and various inter-city letters.
The 2000 Police Patrol Guide reads: [T]ow trucks from outside New York City that are passing through or merely picking up or dropping off a vehicle within New York City are not subject to [seizure].
See DCA's 1994 Deputy Commissioner Lempin's letter, Appendix A to this opinion. As to this, the 2005 DCA Deputy Commissioner testified before me as follows on this subject:
THE COURT: I am not talking about whether you say there have been seizures, there have been this or that, I am just saying the fellow who gets down there behind the wheel of a truck and says, hey, officer, what about your Patrol Guide that says you are not going to whack me with this thing because I am just picking up or dropping off a vehicle within New York.
THE WITNESS: But the law is clear on the subject. DCA's interpretation [on] issues are completely clear on the subject.
THE COURT: OK. You and I are talking about completely different things. You are saying what you think the law is. You may be right. I am telling you how a truck driver would read this language, and on that you are utterly unable to accept that.
THE WITNESS: I would answer your question directly by saying that I think that the way a tow truck driver would answer that, would interpret, would read it means that the police has decided to lay off of them.
THE COURT: All right. We are taking a giant step forward.
THE WITNESS: Right. But as I say, the question of the police deciding how to exercise their enforcement discretion has nothing to do with what the law is.
THE COURT: That is another matter.
THE WITNESS: Right.
THE COURT: That is another matter, but at least you have acknowledged that. When I see the minutes here, I will quote it back to you at some point.
And this substantial effort by the plaintiff was thereafter compelled by the fact that the City throughout the entire time before me took issue with virtually everything on the merits. Indeed it took issue with eventually almost every aspect of this fee application including the number of hours required, the number of attorneys, the necessity of hours attributable to each attorney, the effort to denigrate attorneys' skills by erroneous categorizations, the legal theories under which fees were sought — certain theories not having fee entitlements, the fees paid to civil rights lawyers versus commerce lawyers in plaintiff's firm, and the manner of description of the work done in record keeping.
I note the City had from time to time six attorneys in the case.
The City relies on a five year old case Shannon v. Fireman's Fund Ins. Co., 156 F. Supp. 2d 279, 301-02 (S.D.N.Y. 2001) to establish the dollar amounts of individual attorney fees. But Shannon is no longer valid given constant inflation.
For starters, I reject the effort of the City to obtain a fee reduction saying two of plaintiff's claim theories do not permit fees and certain unspecified hours must therefore be rejected as to which claim any given attorney was working on. This effort by the City fails because this entire action proceeded on a single common core of fact caused by the City's arbitrary seizure of non-New York City licensed trucks, with or without a tow on New York City streets. Consequently, this case cannot be viewed as "as series of discrete claims but instead requires the Court to focus on the single common core of facts and the basic overall relief sought and obtained by the plaintiff." Hensley, supra p. 45. The plaintiff's attorneys therefore necessarily worked on this case accordingly focused.
The City's definition of towing does not require anything being towed. This is contrary to not only New York State law, but all standard dictionaries and was motivated by the City's desire to simplify its seizure ability. See 326 F. Supp. at 571, where the Deputy Commissioner before me expressly stated this. Also, the City, on innumerable occasions, though aware that the Police Department had given blanket permission for seizure-free entry and exit ( see fn. 1, supra), repeatedly brushed it aside before me stating such things as (12/22/04 at p. 267):
CITY COUNSEL: Throughout this trial plaintiff has argued there was some sort of reciprocity agreement that DCA honored for 15 years, and this court accepted that argument in its preliminary injunction ruling.
The city put in letter showing that DCA completely denied any such policy as being valid or being in place. . . . (Emphasis supplied, but while the City did deny this, it was wrong.)
Second, since this case was before me from the outset, I personally observed the amount of work the attorneys were doing to achieve the final result which unclogged the City of New York's bottleneck in interstate commerce towing which now has become of national impact. Consequently, the substantial amount of work was compelled by the City's virtually total opposition to plaintiff's reasonable efforts to sensibly establish and communicate the pre-existing workable agreement on behalf of tow truck drivers from everywhere for such commerce to be free from unconstitutional seizure.
For example, the City was invoking its definition of towing, to wit nothing more than the mere driving of a non-city tow truck in the city, sufficient to enable it to seize and hold trucks notwithstanding New York City Charter § 20-522.1b stating to the contrary as follows:
Any police officer or authorized officer or employee of the department, upon service upon the owner or operator of a tow truck of a notice of violation . . . may seize a tow truck which such police officer or authorized officer or employee has reasonable cause to believe is being used in connection with such a violation. (Emphasis supplied).
Accordingly, in the face of the City's unabated efforts at every turn of the road since the beginning with no hesitation in its disregard of established law governing search and seizure and redefining "towing" to that end, and the ultimate result obtained here being of the first order and achieving a major level of success for all affected on a national issue, the fee award sought of $651,856 plus $6,293.98 in expenses is thoroughly justified, supported by the record and is directed to be paid within thirty (30) days to the plaintiff.
So ordered.
APPENDIX A
THE CITY OF NEW YORK DEPARTMENT OF CONSUMER AFFAIRS 42 Broadway New York, New York 10004
Alfred C. Cerullo, III November 7, 1994 Tel: (212) 487-4401 Commissioner Fax: (212) 487-4197 Anthony E. Shaw Deputy Mayor for Operations City of Yonkers 40 South Broadway Yonkers, N.Y. 10701 Dear Deputy Mayor Shaw:Since 1987 when the Department of Consumer Affairs assumed the licensing and regulatory authority over towing businesses, we have honored an informal licensing reciprocity policy with surrounding counties, towns and villages. This policy allows towing firms from Nassau, Suffolk and Westchester counties, who do not conduct business on a regular basis in the city, to pass through New York City without having to obtain a Consumer Affairs tow permit.
In the past few months my office has received complaints that New York City tow companies are receiving violations in the City of Yonkers for not having a Yonkers tow permit. Needless to say some of our licensees are furious that Yonkers is not abiding by the same agreement as are the other adjacent jurisdictions, and why then is the Department of Consumer Affairs and the NYC Police Department allowing Yonkers companies to travel through New York City without the requisite license.
On behalf of the more than 700 towing company licensees who work in New York City, and travel in and about the metropolitan area, I respectfully request that you reconsider your current policy and allow our licensees to pass through and pick-up vehicles in Yonkers without a permit, so long as they are not doing business in Yonkers on a regular basis.
If necessary, I'm available to meet on this issue at your earliest convenience.
Very truly yours,
Peter J. Lempin Deputy Commissioner